Summary and analysis of floor-crossing legislation

The merits and demerits of floor-crossing have been much debated in South Africa. The legislation that allowed elected representatives to change political allegiance without losing their seats was enacted in part, to cater for the political circumstances that existed during 2002/2003. Despite the fact that the legislation passed Constitutional scrutiny, it has not received popular support and every floor crossing window period has brought with it renewed criticism from the public.

More recently, it was acknowledged that "the political terrain which necessitated floor-crossing has changed". In 2006, President Thabo Mbeki stated that floor-crossing should be discussed by Parliament to determine whether the conditions that made it necessary to have floor crossing legislation are still applicable. In December 2007, at the ANC 52nd National Conference, it was also resolved that the "political terrain which necessitated floor-crossing has changed" and as a result "floor-crossing should be abolished..."

In light of this, the Department of Justice and Constitutional Development has tabled three Bills in Parliament, namely the Constitution Fourteenth Amendment Bill, the Constitution Fifteenth Amendment Bill and the General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill. The general premises of the proposed laws are to abolish floor-crossing at every level of government and to revert to the position that existed prior to 2002/2003 when floor- crossing was prohibited.

This paper seeks to provide a summary and analysis of the proposed floor-crossing legislation. First, it will provide an overview of the history of floor-crossing in South Africa, then discuss the current legislation that permits floor crossing and, finally, set out the proposed changes that are before Parliament.

2. BACKGROUND

Under the Interim Constitution floor crossing was expressly prohibited in terms of section 43(b) and 133(1 )(b) in respect of both the National Assembly and the provincial legislatures. Although in terms of the Final Constitution, floor crossing was prohibited by the anti-defection clause, the transitional arrangements provided for legislation to be enacted to change this position. This could be done by effecting an amendment to Item 23A of the amended Schedule 2 of the Interim Constitution, as provided for in Item 23 or Annexure A of Schedule 6 to the Final Constitution.

In 1997 Parliament appointed a Committee to review the prohibition on floor-crossing. The Committee recommended that "at this stage of our transitional democracy, it would be neither fair nor democratic for the ban to be lifted..

After the 1999 national and provincial elections, the Democratic Party (DP), the Federal Alliance (FA) and the New National Party (NNP) formed a new political party known as the Democratic Alliance (DA). In both Parliament and the provincial legislatures, members of the DA continued to represent their original parties at the national and provincial legislatures, as they could not change parties without losing their seats. In the 2000 municipal elections, these parties contested the elections as the DA. However, in 2001 the NNP withdrew as a member of the DA. NNP councillors elected under the DA at municipal level were unable to leave the alliance without losing their seats. In light of this, Parliament passed various pieces of legislation that enabled elected representatives to leave their parties without losing their seats.

2.1. FLOOR-CROSSING LEGISLATION

In 2002, Parliament passed four Acts to facilitate floor-crossing which allows individual members to change party allegiance, and it allows for parties to merge or divide. The Acts were as follows:

The Constitution of the Republic of South Africa Amendment Act 18 of 2002 (The First Amendment Act) amended the Constitution to allow for a 15-day window period in the second and fourth year after an election, during which councillors at local govemment could cross the floor without losing their seats. The Act also sets a minimum threshold in terms of which 10% of the party membership must defect for members to retain their seats. It also allows for a once off fifteen day period that allows councillors to cross the floor without losing their seats. This once off period was not subject to a 10% threshold.

The Local Government Municipal Structures Amendment Act 20 of 2002 (Local Government Amendment Act) amended the Municipal Structures Act by removing the bar on floor-crossing and made provisions to accommodate this new system at local government level.

The Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002 (Membership Act) provided for floor-crossing at both national and provincial level in the same manner as provided for at local government level.

The Constitution of the Republic of South Africa Amendment Act 21 of 2002 (The Second Amendment Act) allowed for the alteration of the NCOP to accommodate any floor-crossing in the provincial legislatures.

The floor-crossing legislation was unsuccessfully challenged in the Constitutional Court by the United Democratic Movement. The Applicant's argue the right to vote and proportional representation were part of the basic structure of the Constitution and that the floor crossing legislation altered this basic structure. The Court rejected this argument. The Court further held that proportional representation and a prohibition floor-crossing was not an essential element of multi-party democracy. Therefore the legislation allowing for floor-crossing was not unconstitutional in this regard. The Court, however, found that the Membership Act was invalid as it was not passed within a reasonable time as required by the transitional arrangements. The Act, therefore, could not be passed as ordinary legislation in terms of section 76 of the Constitution but had to be passed as a Constitutional amendment.

2.2 RESULTS OF FLOOR-CROSSING9

Since the enactment of the floor crossing legislation the following numbers of elected representatives have changed party allegiances:

2002 - Municipal Floor-Crossing: The DA lost 417 councillors, the majority of which to the NNP and the ANC. The ANC gained a total of 107 proportional representation seats and 16 ward seats. This round of floor-crossing resulted in the NNP reconstituting at municipal level. The NNP and ANC formed an alliance which gained control of numerous DA controlled municipalities, including the City of Cape Town.

2003 - National and Provincial Floor-Crossing: During this period 23 Members of Parliament (MPs) and 21 Members of Provincial Legislatures (MPLs) crossed the floor to various parties. The ANC made significant gains as a result of these defections. It achieved a two-thirds majority in the National Assembly. The DA's representation increased to 46 seats. The UDM was reduced from 14 to 4 seats. Five new parties were formed in the National Assembly.

2004 - Municipal Floor-Crossing: 493 councillors crossed the floor. The ANC gained 332 seats and the DA gained 67 but lost 44. The UDM lost 54 seats and gained 1. The IFP lost 25 seats gaining 8. The PAC lost 21 and gained 2. The ACDP lost 13 councillors and gained 5. The ID gained 39 (it did not have any councillors as it did not exist at the last municipal election).

2005 - National and Provincial Floor-Crossing: 26 MPs out of 400 and 26 MPLs out of 480 defected during this period. The ANC increased by 14 seats in the National Assembly. In the Western Cape the NNP disbanded and councillors defected to the ANC giving it an outright majority in the province. Five new parties were created at national level.

2007 - National and Provincial Floor-Crossing: At national level, 7 members crossed the floor. The ANC gained 4 seats, the African People's Convention gained 2 seats and the National Alliance gained 2 seats. The ID lost 1 seat, the PAC and the United Independent Front (UIF) each lost 2 seats. The United Party of South Africa (UPSA) and the Progressive Independent Movement lost 1 seat each. Two new parties were created.

2007 - Municipal Floor-Crossing: A total of 250 Councillors crossed the floor.

2.3. DEBATE REGARDING FLOOR-CROSSING

The most cited reason for opposing floor-crossing is the nature of the South African electoral system. This system is one based on proportional representation at national and provincial government level. The electorate does not vote for individuals but parties. Representatives are chosen from party lists in

proportion to the number of votes won by their respective parties in an election. The proportion of votes won, is a direct reflection of the will of the voters. Therefore, one of the major criticisms of floor-crossing is that a representative who defects to another party completely disregards the will and mandate of the voters. The party which won the seat in accordance to the will of the electorate loses it to an individual who did not receive an endorsement or who was not bestowed with any mandate. Thus, floor-crossing undermines "the representation of voters' interest as communicated through the proportional representation formula, in turn undermining the Constitutional principles of participatory and representative democracy."

A further criticism is that at national and provincial level the closed list proportional representation system does not allow the electorate to hold individuals accountable for their actions. Representatives crossing the floor do so without consulting the electorate. Public accountability is thus diluted.

Floor- crossing also tends to favour larger parties as a greater number of representatives have to defect to meet the 10% threshold requirement. However, for smaller parties a single member defecting fulfils the 10% threshold requirement which results in the party losing its representation in that forum. The allure of larger parties also means that those crossing the floor tend to migrate in that direction as these parties provide greater security and greater opportunities.

Floor-crossing has resulted in a number of new parties being formed. These parties do not have an electoral mandate but are eligible for party funding from the Independent Electoral Commission (IEC). Floor-crossing has also reinforced apathy in the electorate. Surveys indicate strong voter disapproval for floor-crossing. It was argued that floor crossing created political instability. This, in turn, has a negative effect on policy implementation and good governance. It also encourages "political expediency among political representatives and distrust among the electorate."

The arguments favouring floor crossing have not received much prominence. Supporters of floor-crossing argue that a prohibition "constitutes a serious erosion of freedom of expression and amounts to an expression of the imperative mandate and is a negation of the practice of a free mandate of representation. A representative's right to free speech is curtailed as he or she will be compelled to maintain the party line in fear of losing their seat. It is further argued that it prevents political realignment and it does not allow for a mid-term shift in political allegiance. If a party is no longer acting in line with its electoral mandate, the elected representative will be able to join a party closer to that mandate.

3. PROPOSED LEGISLATION TO PROHIBIT FLOOR CROSSING

The Constitution Fourteenth Amendment Bill seeks to abolish floor-crossing in the National Assembly and provincial legislatures, while the Constitution Fifteenth Amendment Bill seeks to do the same in Municipal Councils. The General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Councils) Amendment Bill seeks to effect consequential amendments to other legislation affected by the proposed abolition of floor crossing. The legislation must be passed and implemented before 1 September 2009. This is before the next floor crossing window at local government level opens. Both of the Constitutional Amendment Bills fall within the ambit of section 74 of the Constitution, while the Membership Bill falls within that of section 75 of the Constitution and must, therefore, be passed according to the procedure set out in those sections.

3.1. IMPLICATIONS OF ABOLISHING FLOOR-CROSSING

The effect of abolishing floor-crossing is that the position reverts to that applicable prior to 2002. The implications are that:

A member of the National Assembly, a provincial legislature or a Municipal Council will no longer be able to become a member of another political party. If a member decides to change party allegiances, the person would lose their membership of the National Assembly, that provincial legislature or that Council.

An existing political party will no longer be able to merge with another political party, or to subdivide into more than one political party or to subdivide anyone subdivision to merge with another political party.

A political party will no longer be able to change the name of the party in the National Assembly, provincial legislature or Municipal Council, at any time it chooses.

3.2. CONSTITUTIONAL FOURTEENTH AMENDMENT BILL [B 62 – 2008]

The purpose of the Bill is to:

Regulate the determination of political party participation in provincial delegations in provincial delegations to the National Council of Provinces (NCOP).

It further seeks to abolish the right of:

- Members of the National Assembly and of provincial legislatures to become a member of another political party while retaining membership of the National Assembly or the relevant provincial legislature.

- Existing political parties to merge with another political party, or subdivide into more than one political party, while allowing a member of the National Assembly or provincial legislature affected by such changes to retain membership of the National Assembly or that provincial legislature.

Clause 1

This section seeks to amend section 61 of the Constitution which determines allocation of delegates to the NCOP. In the instance of the composition of the provincial legislature changing due to the change of party membership, parties merging or subdividing, the legislature must within 30 days determine in terms of national legislation how many of each party's delegates are to be permanent and special delegates and appoint the delegates according to the party nominations. At present this section deals with the changes to the composition of the provincial legislature after floor-crossing has occurred. The amendment seeks to alter this section in light of the proposed abolition of floor-crossing.

Clause 2

This section seeks to amend section 62 of the Constitution which deals with the appointment of permanent delegates from the provincial legislature to the NCOP after floor-crossing has occurred. In terms of the amendment, the term of a permanent delegate expires on the day before the appointment of new permanent delegates after an election as taken place.

Clause 3

This clause seeks to amend section 105 of the Constitution which determines the composition and election or provincial legislatures. The amendment reverts back to the original wording of the section making the composition of the provincial legislature subject to Schedule 6A. At present this section is not subject to Schedule 6A.

Clause 4

This section amends section 106 of the Constitution which deals with membership of the provincial assembly. This clause states that a person loses membership in the provincial legislature if that person ceases to be a member of the party that nominated that person unless the person becomes a member of another party according to Schedule 6A. It removes the right of members to cross the floor and retain their membership to the legislature.

Clause 5 (a)

This amendment reverts to the original Schedule 3. In terms of this clause, the number of provincial delegates to the NCOP are determined in terms of a set formula. If the calculation yields a surplus, undistributed delegations must be distributed according to the parties in the sequence of the highest surplus. If parties have the same surplus and the undistributed delegates are allocated to the party or merged party with the highest number of votes. However, if such a party came into existence because of change in membership or subdivisions or did not exist at the last provincial elections, undistributed delegates must be distributed in a manner that is consistent with democracy. At present this section allows for parties formed as a result of floor-crossing to be considered when undistributed delegates are distributed. The amendment will repeal this.

Clause 5 (b)

This clause gives effect to the proposal arising during the Second Reading debate on the Constitutional Matters Amendment Bill [B 22B - 2005] and is unrelated to floor-crossing. It seeks to further regulate the determination of political party participation in provincial delegations to the National Council of Provinces. It deals with situations where undistributed delegates must be allocated amongst parties with not only the same surplus but also the same number of votes. It stipulates that this distribution must be done in a manner consistent with democracy.

Clause 6

The amendment seeks to repeal Schedule 6A of the Constitution. This clause, at present, regulates the retention of seats in the National Assembly and provincial legislature when floor-crossing occurs. This amendment will result in members losing their seat should they cross the floor.

- of a member of a Municipal Council to become a member of another political party while retaining membership of that Council; and

- of an existing political to merge with another political party, or to subdivide into more than one political party, or to subdivide and to permit allowing a member of a Council affected by such changes to retain membership of that Council; and

- to provide for matters connected therewith.

Clause 1

This clause seeks to amend section 46 of the Constitution which determines the composition and election of representatives to the National Assembly. The amendment reverts back to the original wording of the section making the composition of the National Assembly subject to Schedule 6A. This is a consequential amendment to bring this section in line with the proposed abolition of floor-crossing.

Clause 2

This clause seeks to amend section 47 of the Constitution which determines membership to the National Assembly. This clause states that a person loses membership in the National Assembly, if that person ceases to be a member of the party that nominated that person, unless the person becomes a member of another party according to Schedule 6A. This is a consequential amendment to bring this section in line with the proposed abolition of floor-crossing.

Clause 3

This clause seeks to amend section 157 of the Constitution which determines composition and election of Municipal Councils. The amendment reverts back to the original wording of the section making the composition of the Municipal Councils subject to Schedule 6A. This is also a consequential amendment in light of the proposed abolition of floor-crossing.

Clause 4

This clause seeks to amend section 158 of the Constitution which determines membership to the Municipal Councils, by adding subsection 3. The amendment stipulates that vacancies in a Municipal Council must be filled in terms of national legislation.

Clause 5

Clause 5 repeals Schedule 6B of the Constitution. This section currently regulates the loss or retention of membership of Municipal Councils when floor-crossing occurs.

The purpose of this Bill is to amend legislation that will be affected if floor-crossing is abolished. Amendments to the following pieces of legislation are required to deal with consequential matters arising from the abolishing of floor-crossing, namely:

Electoral Commission Act 51 of 1996 as amended by Act 34 of 2003

Clause 1

This clause seeks to abolish the right of political parties to change their name at any time by repealing s 16A of the Act. This section currently enables a political party to change its registered name, abbreviated name, distinguishing mark or symbol.

Public Funding of Registered Parties Act 103 of 1997

This Act regulates the repayment of unspent balances of all moneys allocated to political parties participating in Parliament and provincial legislatures from the Represented Political Parties' Fund (the Fund) when such political parties cease to qualify for such money.

Clause 2

This clause seeks to amend section 5 of the Act. It stipulates that a political party that ceases to qualify for funding in terms of the Act must within 21 days repay unspent balances to the Commission.

Clause 3

This clause seeks to amend section 6 of the Act and puts in place mechanisms to hold political parties accountable to the Electoral Commission for the money allocated to them from the Fund.

Clause 4

This clause seeks to repeal section 6A of the Act that regulates the payment to the IEC of the unspent balance of moneys by a political party that after a window for floor- crossing ceases to qualify for the allocation of moneys from the Fund.

Clause 5

This section inserts section 68 into the Act. It sets out the instances when a political party must repay unspent funds. These are:

- when a political party ceases to qualify for allocation of moneys from the Fund, o when Parliament and every provincial legislatures are dissolved, and

- where Parliament and any provincial legislature is dissolved.

Clause 6

Section 9(3) and (4) of the Act regulates the repayment of unspent balances to the IEC, by political parties in the event that Parliament or the provincial legislatures are dissolved. This clause deletes these sections as they will be rendered redundant by the proposed new section 68 (2).

Clauses 7, 8, 9

These clauses seek to effect consequential amendments to sections 9A and 10, and the Preamble of the Funding Act. Clause 7 seeks to amend section 9A of the Act to criminalise non-compliance with the proposed section 68.

Determination of Delegates (National Council of Provinces) Act 69 of 1998

Clause 10

The proposed amendment to section 2 of the Act seeks to ensure that parties formed by floor-crossing and which did not participate in the last provincial elections, must be regarded as having received no votes during that election. The effect of this is when provincial delegates are allocated, members of these parties will not be eligible to be chosen.

Electoral Act 73 of 1998

Clause 11

This clause seeks to effect an amendment to item 23 of Schedule 1 A of the Act which regulates the filling of vacancies in the National Assembly and provincial legislatures.

Local Government: Municipal Structures Act 117 of 1998

Clause 12

The intention of this amendment to Section 26 dealing with terms of office of councillors, is to provide that when a councillor is replaced in terms of item 6(a) of Schedule 68 of the Constitution, the newly appointed representative is appointed for the remainder of the replaced representative's term.

Clause 13

This clause seeks to amend section 27 of the Act and regulates the vacation of office by councillors. In terms of the proposed amendment, a councillor vacates office if:

was nominated to a ward by a party and ceases to be a member of that party

was not nominated to a ward but becomes a member of a party atter an election.

Clause 14

Section 29 requires the Speaker of a municipal council to call for a council meeting to deal with any changes in membership after a floor-crossing window period. The amendment seeks to delete this section as it will be rendered redundant if floor-crossing is abolished.

Clause 15

Section 62 directs that when metropolitan subcouncils are established, a mechanism must be created for the appointment of councillors who have crossed the floor. This amendment seeks to repeal this section.

Clauses 16

The amendment to section 63 dealing with composition of the metropolitan subcouncils, seeks to enact consequential changes arising from the proposed abolition of floor-crossing.

Clauses 17

Section 66 dealing with term of office of members, is proposed to be amended so that when a metropolitan councillor is replaces another in terms of item 6(b) of Schedule 68 of the Constitution, the newly appointed member serves out the remainder of the term of the previous councillor.

Clause 18

This section seeks to repeal sections 93A which waivered time notices during the once oft period allowed for floor crossing when the applicable legislation became operational. It also seeks to repeal section 938 of the Act which requires the IEC to publish in the Government Gazette, changes to municipal councils after a floor-crossing period. These sections will be redundant once floor- crossing is abolished.

Local Government: Municipal Structures Amendment Act 20 of 2002

Clauses 22 and 23

These clauses seek to repeal section 12 dealing with registration of new parties for purposes of Schedule 6A to Constitution and section 13 which provided for transitional arrangements during the once off floor­crossing period as they will be rendered redundant by the abolition of floor-crossing.

Clause 24

This clause proposes to amend section 14 of the Act as it refers to the once off floor crossing period after the relevant acts came into operation.

CONCLUSION

While many countries allow for floor-crossing, in the South African context it has caused much discontent among voters and has possibly contributed to voter apathy. Floor-crossing as tended to favour larger parties and minority parties more easily lose members, weakening democracy. The proposed legislation seeks to address the current discontent with floor-crossing. It is hoped that these changes will strengthen democracy in a system based on proportional representation and multi-party democracy.